Greene v. Hereford

• Decision Date: 27 March 1908
• Docket Number: Civil 1037
• Citation: 12 Ariz. 85,95 P. 105
• Parties: W.C. GREENE and the GREENE CATTLE COMPANY, a Corporation, Defendants and Appellants, v. FRANK H. HEREFORD, Plaintiff and Appellee
• Court: Arizona Supreme Court

95 P. 105

12 Ariz. 85

W.C. GREENE and the GREENE CATTLE COMPANY, a Corporation, Defendants and Appellants, v. FRANK H. HEREFORD, Plaintiff and Appellee

Civil No. 1037

Supreme Court of Arizona

March 27, 1908

APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell Judge. Affirmed.

The facts are stated in the opinion.

Eugene S. Ives, S. L. Pattee, and S. V. McClure, for Appellants.

It was error to strike from the amended answer the matters set up in the cross-complaint. The only motion to strike out an entire pleading contemplated by our statutes is the striking out of an answer as sham or an answer or demurrer as frivolous. Nothing in these statutes contemplates the summary striking out of a counterclaim, for the reason that the matters pleaded in it are not proper subject of a counterclaim. This objection can only be raised by demurrer under the provisions of paragraph 1354. Fettretch v. McKay, 11 Abb. Pr N.S. (N.Y.), 453; Collins v. Suau, 7 Rob. (N.Y.) 94.

Paragraph 1364 of the Revised Statutes of 1901 prescribes what may be pleaded as a counterclaim, and provides in effect that the claim sued upon and the counterclaim interposed must be of the same general character.

It is immaterial what the defendant calls his pleading, whether he designates it as a counterclaim or cross-complaint. It is the facts set up in the pleading which make it a counterclaim and its character will be determined by the court from the facts so pleaded and not from the designation given it by the pleader. Dunham v. Travis, 25 Utah 65, 69 P. 468.

By failing to appear and answer interrogatories at the time fixed for his deposition, the plaintiff confessed the interrogatories which would have been propounded, and evidence contrary to the interrogatories so taken as confessed should not have been received.

Paragraph 2531 provides: "If the party interrogated refuses to answer the officer executing the commission shall certify such refusal, and any interrogatory which the party refuses to answer, or which he answers evasively, shall be taken as confessed."

The effect of taking the interrogatories as confessed and the inadmissibility of evidence in contradiction is clearly set forth in Gulf, Colo. & S.F.R.R. Co. v. Nelson, 5 Tex. Civ. App. 387, 24 S.W. 558, in which it was held that it was error to refuse to take certain interrogatories as confessed, and error to permit the plaintiff to testify contrary to the interrogatories so taken as confessed.

The contract between the plaintiff and defendants under the pleadings and evidence was not, as a matter of law, a contract of employment for an indefinite time. It was either a contract for one year only, or its character was a question for the jury to determine. 26 Cyc. 973, 974; Greer v Arlington Mills Co., 1 Penne. (Del.) 581, 43 A. 609; Adams v. Fitzpatrick, 125 N.Y. 124, 26 N.E. 143; Martin v. New York Life Ins. Co., 148 N.Y. 117, 42 N.E. 416.

The invariable rule, however, in all jurisdictions is that any presumption as to the period of the contract is to be controlled by evidence indicating the intention of the parties at the time such contract was made. Kelly v. Carthage Wheel Co., 62 Ohio St. 598, 57 N.E. 984; Kellogg v. Citizens' Ins. Co., 94 Wis. 554, 69 N.W. 362; Adams v. Fitzpatrick, supra.

Under the evidence the court should have instructed the jury that whatever may have been the contract made on April 26, 1901, the implied contracts for service during succeeding years provided that the plaintiff should render his entire service to the defendants.

The court erred in refusing to instruct the jury as requested, that the burden of proof to establish a waiver was upon the plaintiff.

It will not be disputed that as a matter of law the burden of proof to establish a waiver is upon the party who asserts it, and it is assumed that the court refused the request because of the following portion of it: "The proof of such waiver must be made by clear and satisfactory evidence."

"A waiver of an existing right, to be effectual, must be made intentionally, and when there is no express agreement to surrender a right, the mere actions of a person, to have that effect, must be such as to evince clearly an intention in the minds of the actor to make the surrender." Balfour v. Parkinson, 84 F. 855, at p. 861; Linwood Park Co. v. Vandusen, 63 Ohio St. 183, 58 N.E. 576, at p. 580; American Freehold Land Mtg. Co. v. Pace, 23 Tex. Civ. App. 222, 56 S.W. 377.

S. E. Hazzard, and Frank H. Hereford, for Appellee.

The judgment should be affirmed for the reason that plaintiff's complaint was founded upon an account, both complaint and account being verified, and defendants' answer not being verified. Rev. Stats. 1901, pp. 440, 441, par. 1358, subd. 11.

The failure of the appellants to verify their answer admits "the allegations of the complaint in regard to such matter." Daggs v. Phoenix Nat. Bank, 5 Ariz. 409, 53 P. 201; Daggs v. Phoenix Nat. Bank, 177 U.S. 549, 20 S.Ct. 732, 44 L.Ed. 882.

Our statutes expressly provide what pleadings shall be permitted on the part of the plaintiff and defendant, and they do not contemplate or permit the filing of a cross-complaint. If the matter set up in the cross-complaint is proper matter, correctly pleaded, to establish a counterclaim, then the misnomer cuts no figure.

"A counterclaim to be available to a party must afford to him protection in some way against the plaintiff's demand for judgment, either in whole or in part. It must therefore consist of a setoff or claim by way of recoupment or be in some way connected with the subject of the action stated in the complaint. It must present an answer to the plaintiff's demand for relief; must show that he is not entitled according to law or under the application of just principles of equity to judgment in his favor as or to the extent claimed in the complaint. It must therefore contain not only the substance of what is necessary to sustain an action in favor of the defendant against the plaintiff, but it must also operate in some way to defeat in whole or in part the plaintiff's right of recovery in the action. An answer which does not meet these requirements is insufficient, whether regarded as a defense or counterclaim." Mattoon v. Baker, 24 How. Pr. (N.Y.) 329; Venable v. Dutch, 37 Kan. 515, 1 Am. St. Rep. 260, 15 P. 520; Dove v. Hayden, 5 Or. 502. "Only such causes of action may be joined as are capable of the same character of relief." Rev. Stats., p. 428, par. 1291.

The right to take the deposition of an adverse party is statutory and it can only be taken in strict compliance with the provisions of the law. The statutes relating to the taking of the deposition of the adverse party expressly state that "A commission to take the answers of the party to the interrogatories filed shall be issued by the clerk or justice and be executed or returned by any authorized officer, as in other cases." Rev. Stats., par. 2529, p. 673. And there is no provision of our statutes under which the deposition of the adverse party can be taken except upon a commission issued by the clerk or justice, and after notice and interrogatories filed.

But if there had been no other objection on the part of appellee Hereford to giving his deposition, the fact that at the time Josie B. Henderson, before whom the deposition was to be taken, in accordance with the notice, was the stenographer of, in the employ and under the control of Hon. Eugene S. Ives, attorney for appellants, was sufficient to disqualify her from acting as commissioner, or notary public, and sufficient to justify appellee Hereford in refusing to give his deposition before her. Blum v. Jones, 86 Tex. 495, 25 S.W. 694; Rice v. Ward, 93 Tex. 537, 56 S.W. 747; Testard v. Butler, 20 Tex. Civ. 106, 48 S.W. 753; Floyd v. Rice, 28 Tex. 342; 9 Am. & Eng. Ency. of Law, p. 305. And see Tillinghast v. Walton, 5 Ga. 335; Glanton v. Griggs, 5 Ga. 424; Singer Mfg. Co. v. McAllister, 22 Neb. 359, 35 N.W. 181.

The court gave several instructions on waiver, which were properly given and cover any instruction upon the subject asked for and refused by defendants.

OPINION

DOAN, J.

-- On April 26, 1906, Frank H. Hereford was an attorney at law practicing in the courts of the territory of Arizona with one Seth E. Hazzard, under the firm name of Hereford & Hazzard. At that time W. C. Greene was the president of the Greene Cattle Company, and in behalf of himself and the Greene Cattle Company he entered into a contract with Hereford. No one, other than Greene and Hereford, was present at the time the contract was made, which was oral, with the exception that at its conclusion Greene wrote and gave to Hereford a memorandum showing what ranches he wanted scrip laid upon, and dictated, and signed as president, a letter to F. B. Mosen, secretary of the Greene Cattle Company, setting forth the general scope of Hereford's duties under the contract, which work, so outlined, Hereford afterward attended to, and the compensation for which, under said contract is the subject matter of this action. Hereford and Greene differ as to the nature of the contract. Hereford alleges that Greene and the Greene Cattle Company employed him at a salary of $5,000 per year, to be paid by the defendants and each thereof to the plaintiff, to act as general counsel and attorney at law of the Greene Cattle Company, and the special counsel of the defendant Greene, in matters and proceedings in the United States Land Office, and for similar matters affecting the property owned or used by the said Greene Cattle Company. Greene alleges that Hereford agreed to devote his entire time exclusively to the service of Greene and the Greene Cattle...